Important. The transcription of the judicial ruling Sentence No. 1597/2023, obtained from the Judicial Documentation Center (CENDOJ), is for the sole purpose of facilitating accessibility for screen readers and other assistive technologies, and therefore has no legally binding effects. For official inquiries, it is imperative to refer to the original document hosted on the CENDOJ system.
Reporting Judge: His Excellency Mr. D. Antonio Jesús Fonseca-Herrero Raimundo.
Administrator of Justice: Her Excellency Ms. María Pilar Molina López.
Excellencies,
Mr. Pablo Lucas Murillo de la Cueva, president
Ms. Celsa Pico Lorenzo
Mr. Luis María Díez-Picazo Giménez
Mr. Antonio Jesús Fonseca-Herrero Raimundo
Mr. José Luis Requero Ibáñez
In Madrid, on November 29, 2023.
This Court has reviewed appeal no. 85/2023, filed by court representative Aníbal Bordallo Huidobro on behalf of Rubén Calleja Loma, Lucía Loma Luis, and Alejandro Agustín Calleja Lucas, assisted by lawyer Juan Rodríguez Zapatero, and by the Public Prosecutor’s Office, against the judgment of November 17, 2022, issued by the Third Section of the Administrative Litigation Chamber of the National High Court, in the special procedure for the protection of fundamental rights no. 2/2022, concerning the dismissal by administrative silence of the Ministry of Justice of the claim for state patrimonial liability (abnormal functioning of the Administration of Justice) filed on July 28, 2021, and received by said Ministry on December 1, 2021.
The General State Administration, represented and defended by the State Attorney, has appeared as the respondent party.
The rapporteur was His Excellency Mr. D. Antonio Jesús Fonseca-Herrero Raimundo.
Factual Background
FIRSTBefore the Third Section of the Contentious-Administrative Chamber of the National High Court, Special Procedure for the Protection of Fundamental Rights No. 2/2022 was initiated. This procedure was filed by Mr. Rubén Calleja Loma, Ms. Lucía Loma Luis, and Mr. Alejandro Agustín Calleja Lucas, assisted by lawyer Mr. Juan Rodríguez Zapatero, and by the Public Prosecutor’s Office, against the dismissal by administrative silence of the Ministry of Justice of the claim for patrimonial responsibility of the State (abnormal functioning of the Administration of Justice) filed on July 28, 2021, and received by said Ministry on December 1, 2021.
In the aforementioned contentious-administrative appeal, the ruling of the judgment is as follows:
“DISMISS the contentious-administrative appeal filed by DON Rubén Calleja Loma, DON Alejandro Agustín Calleja Lucas, and DOÑA Lucía Loma Luis against the presumed dismissal of the claim of December 1, 2021, filed with the Ministry of Justice, as it is in accordance with the law.”
The costs incurred are imposed on the plaintiff.”
SECOND.- An appeal for cassation was prepared against this judgment by Rubén Calleja Loma, Lucía Loma Luis, and Alejandro Agustín Calleja Lucas, and the Third Section of the Contentious-Administrative Chamber of the National High Court considered them prepared, thus the case files and administrative record were elevated to this Court, before which the appellant filed the aforementioned appeal for cassation.
THIRD.- By an order issued by the First Section of this Chamber on March 23, 2023, it was agreed to admit for processing the appeals for cassation prepared by Rubén Calleja Loma, Lucía Loma Luis, and Alejandro Agustín Calleja Lucas, and by the Public Prosecutor’s Office, resolving:
«FirstSecond.- Admit for processing the appeal for cassation prepared by the legal representatives of Mr. Rubén Calleja Loma, Mr. Alejandro Agustín Calleja, and Ms. Lucía Loma Luis against the judgment of November 17, 2021, issued by the Third Section of the Contentious-Administrative Chamber of the National High Court in Special Procedure for the Protection of Fundamental Rights 2/2022.
Third. – To specify that the issues in which we understand there is objective jurisprudential interest for the formation of jurisprudence are the following;
1. What should be the appropriate channel to request from the Spanish State the compliance with the opinions of the Committee on the Rights of Persons with Disabilities, issued in the terms and by the procedure provided for in the Optional Protocol to the Convention – ratified by Spain –, when such opinions contain recommendations addressed to our authorities in order to repair the damages derived from the proven non-compliance with the rights provided for in the Convention.
2. Whether such reparation and compliance with the provisions of the Opinion involves reviewing final judicial decisions, as the claim for patrimonial liability is based on a different premise.
ThirdThird.- Identify as legal norms that, in principle, will be subject to interpretation those contained in articles 10.2, 14, 15, 23, 24 and 27 of the Constitution; the Convention on the Rights of Persons with Disabilities (New York, December 13, 2006) and the doctrine of the Constitutional Court and the Supreme Court; articles 28 to 31 of Law 25/2014, of November 27, on the application and observance of international treaties; and articles 32 to 34 of Law 40/2015 and 292 to 296 LOPJ on the patrimonial liability of the administration, without prejudice to the fact that the judgment may extend to other legal issues and norms if the debate finally held in the appeal so requires, pursuant to article 90.4 of the LJCA.
Said order was rectified by the one of March 30, 2023, and in its operative part it was agreed:
The Admission Section resolves: to complete the first paragraph of the operative part of the order of March 23, 2023, the final wording of which is as follows:
FirstAdmit for processing the appeal for cassation prepared by the Public Prosecutor’s Office and by the legal representatives of Rubén Calleja Loma, Alejandro Agustín Calleja, and Lucía Loma Luis against the judgment of November 17, 2021, issued by the Third Section of the Contentious-Administrative Chamber of the National High Court in the Special Procedure for the Protection of Fundamental Rights 2/2022, as noted in the order of this Section dated January 31, 2019, with the wording expressed in the second legal reasoning of this order.
FOURTH4.- In the brief submitting the appeal, filed on May 18, 2023, the appellants Rubén Calleja Loma, Lucía Loma Luis, and Alejandro Agustín Calleja Lucas request that a judgment be issued: “upholding the appeal with the following pronouncements:
1.- Establish as doctrine for the formation of jurisprudence in response to the questions of jurisprudential interest raised in the Order admitting the appeal, the one indicated in section III of this appeal.
2.- Declare that the appeal for cassation filed by my aforementioned representatives has been granted, against the sentence of the National High Court, quashing and annulling the same; and consequently, uphold the contentious-administrative appeal filed by my representatives, annulling said sentence and declaring the patrimonial liability of the State (Ministry of Justice) due to the abnormal functioning of the Administration of Justice, condemning it to the sum of 350,000 euros for all damages and losses caused to the appellants and in their favor.
3.- Agree to the inclusion of Rubén Calleja Loma in inclusive vocational training programs.
4.- Investigate all mistreatment and humiliation suffered by Rubén.
5.- Public recognition of the violation of Rubén’s rights to an inclusive education and a life free from violence and discrimination, as well as the violation of his parents’ rights for having been improperly criminally accused of the crime of child abandonment, which entailed moral and economic consequences. Agree to the publication of said UN Committee Opinion and its wide distribution in accessible formats so that it reaches all sectors of the population.
7.- Order the defendant Administration to pay the costs of the proceedings. And in the event that the appeal is not upheld without imposing the costs of the proceedings.” Likewise, in the appeal brief filed by the Public Prosecutor’s Office on May 9, 2023, it requested: “issue a judgment by which, upholding this cassation appeal, it overturns the appealed resolution, rendering it ineffective, in the terms previously requested.”
FIFTH. – Opposition proceedings were initiated by order of May 29, 2023. The legal representatives of the General State Administration filed a brief on July 11, 2023, requesting: “issue a judgment dismissing it with the other legal pronouncements set forth in the last section of this brief.”
SIXTH. – By order of September 22, 2023, the deliberation and ruling of the present appeal were scheduled for November 7, 2023, the date on which they took place. The judgment was delivered by the rapporteur judge on November 21, 2023.
Legal Grounds
FIRST.- The legal representation of Mr. Rubén Calleja Loma, Ms. Lucía Loma Luis, and Mr. Alejandro Agustín Calleja Lucas files an appeal for cassation against the judgment issued on November 17, 2022, by the Third Section of the Contentious-Administrative Chamber of the National High Court in the special procedure for the protection of fundamental rights of the person 2/2002. This judgment challenged the presumed dismissal of the claim for state patrimonial liability that this party had filed on July 28, 2021, with the Ministry of Justice due to the improper functioning of the Administration of Justice.
The claim for patrimonial liability was based on a central allegation that the Spanish State had failed to comply in full with the recommendations and obligations imposed by the decision of September 18, 2020, of the Committee on the Rights of Persons with Disabilities (CRPD), which was issued under article 5 of the Optional Protocol to the Convention on the Rights of Persons with Disabilities (Optional Protocol), the ratification instrument of which was published in the BOE of April 22, 2008, and entered into force on May 3 of the same year. It highlighted the fact that no response had even been given within the six-month period established in the aforementioned Optional Protocol regarding what measures have been adopted concerning the content of the decision.
The aforementioned decision concluded that the Spanish State had breached the obligations incumbent upon it under articles 7, 15, 17, 23, and 24, read alone and in conjunction with article 4 of the Convention on the Rights of Persons with Disabilities (the Convention), done at New York on December 13, 2006, and ratified by Spain by Instrument of November 23, 2007, published in the BOE of April 21, 2008, and its Optional Protocol, done at New York on December 13, 2006, and ratified by Spain by Instrument of November 23, 2007, and published in the BOE of April 22, 2008 (the Optional Protocol).
The essential claim of the patrimonial claim was the full compliance with the obligations incumbent upon the Spanish State established in the aforementioned UN Committee’s opinion. Therefore, the initial claim highlighted that it is not about annulling prior judicial rulings or administrative decisions that had been made, but precisely, based on said opinion and, having verified the non-compliance by the Spanish State and the disregard for the opinion’s content, requesting its full compliance and effective reparation.
The lawsuit denounced that the administrative decision to reject, by silence, the claim for patrimonial liability resulted in the violation of the fundamental rights contained in articles 14, 15, 24, and 27 of the Spanish Constitution.
SECOND. – The challenged sentence, after noting the administrative action being appealed and summarizing the procedural position of the parties, responds to the claims made, leading to the dismissal of the appeal with the arguments developed in two of its Legal Grounds:
A) In Legal Ground Six, citing Judgment of the Constitutional Court (Plenary) 23/2000 and judgments of the Supreme Court (Third Chamber) of February 6, 2015 (appeal 120/2013) and (Second Chamber) of July 8, 2020 (appeal 4006/2017), it denies binding value to the Committee’s opinions on persons with disabilities since, according to those judgments, the Committee lacks jurisdictional powers or faculties for the authentic interpretation of the rights established in the Treaty, as it was not granted that competence, unlike the European Court of Human Rights, whose decisions can, in certain cases, override those of the States, rendering final judicial decisions ineffective (Article 5 bis LOPJ and Article 46 – Binding Force and Execution of Judgments – ECHR). It concludes that this does not question, therefore, that the “Human Rights Committee’s” opinion is binding for the State, but maintains that this binding nature has the scope provided for in the international treaties that define its powers and the effects of its reports.
B) In the Seventh Legal Ground, after enumerating the violations of fundamental rights invoked, describing the procedural actions initiated by the parents before the administrative litigation jurisdiction due to the measures adopted by the competent regional administration to address the needs identified regarding the best education for the disabled minor, and subsequently before the Constitutional Court and the European Court of Human Rights, always with negative results regarding the possible violation of fundamental rights again invoked at the instance, it concludes that: (i) “the violations of fundamental rights that are denounced, based on the aforementioned Opinion, were examined and dismissed by the competent bodies with final effect and, therefore, the appeal cannot be upheld based on the Opinion. As we have reasoned, the Opinion, in accordance with the determinations of the Treaty creating the Committee and the functions attributed to it, lacks the efficacy to annul and invalidate the ruling of the judgment that dismissed the appeal for the protection of fundamental rights – whose protection is sought again – or the investigations of the Public Prosecutor’s Office.”; and, (ii) “In this case, it is not observed that the actions of the educational administration caused injury to rights or the abnormal functioning denounced by the plaintiff, linked precisely to that injury to fundamental rights derived from the Convention on the Rights of Persons with Disabilities.”
It therefore highlights that, unlike the res judicata (Article 222 of the Civil Procedure Law), the Committee’s opinion has no effect other than consideration and recommendation within the framework of the Treaty and the Committee’s functions, but it lacks the power to nullify the determinations of final judgments that decided the appeal as indicated. It then states that “the same can be said of the recommendations that encourage the exploration of alleged uninvestigated facts, because the Public Prosecutor’s Office received separate complaints from the plaintiffs for it to investigate and rule on certain mistreatment of the minor at school. However, the Public Prosecutor’s Office found no grounds for that investigation to culminate in criminal charges formalized as such (in the same vein as indicated by the trial court ruling – folio 63-).”.
In this same legal ground, it rejects the binding nature of the doctrine established in the ruling of this Court, Ruling 1263/2018, of July 17, 2018 (Appeal 1002/2017), arguing that it is a single case which, therefore, does not constitute the concept of jurisprudence under Article 1.6 of the Civil Code, resorting for this purpose to STS 1976/2017 of December 14, 2017 (Appeal 2965/2016) when it concludes that such a concept is not built with a single ruling.
Finally, it denies the application of the ruling invoked and issued by the same Sentencing Chamber, Fifth Section, of April 27, 2022 (Rec. 2/2021), because what was agreed there was to remedy the harm of not having provided medical assistance to the claimant at the time of detention as was mandatory, a different scenario from the one being judged, in which the estimation of the claim, as it was filed, would entail the review of final judicial decisions through an Opinion that does not have the scope for it.
THIRD. – By order issued on March 23, 2023, the following were established as issues of objective jurisprudential interest for the formation of jurisprudence: to determine:
1. What should be the appropriate channel to request the Spanish State to comply with the opinions of the Committee on the Rights of Persons with Disabilities, issued under the terms and procedure provided for in the Optional Protocol to the Convention – ratified by Spain – when such opinions contain recommendations addressed to our authorities to repair the damages resulting from the proven non-compliance with the rights provided for in the Convention.
2. Whether such reparation and compliance with the provisions of the Opinion involves reviewing final judicial decisions, as the claim for patrimonial liability is based on a different premise.
That same judicial resolution agreed: “Identify as legal norms that, in principle, will be subject to interpretation those contained in articles 10.2, 14, 15, 23, 24 and 27 of the Constitution; the Convention on the Rights of Persons with Disabilities (New York, December 13, 2006) and the doctrine of the Constitutional Court and the Supreme Court; articles 28 to 31 of Law 25/2014, of November 27, on the application and observance of international treaties; and articles 32 to 34 of Law 40/2015 and 292 to 296 LOPJ on the patrimonial liability of the administration, without prejudice to the judgment extending to other issues and legal norms if the debate finally established in the appeal so requires, pursuant to article 90.4 of the LJCA.”
FOURTH.- The appeal brief filed by the legal representatives of Rubén Calleja Loma, Lucía Loma Luis, and Alejandro Agustín Calleja Lucas begins by describing the facts considered by the Committee in its opinion, without citing any facts other than those presented in the lawsuit and summarized in the appealed judgment. These facts focus on (i) the existence of a systematic and repeated pattern of discriminatory acts and educational segregation; (ii) the certain evidence of physical and psychological mistreatment suffered by their son; (iii) the initiation of an improper criminal proceeding against them for demanding his enrollment in a mainstream school with educational support.
It transcribes the final agreement of the opinion, which imposed unfulfilled obligations on the Spanish State that served as the basis for their claim and lawsuit, and which would have been totally and openly breached. It provides a descriptive enumeration of the fundamental rights invoked. It asserts that this opinion is a valid prerequisite for the claim for patrimonial responsibility filed with the Administration and, after its presumed dismissal, with the administrative litigation jurisdiction, resorting for this purpose to the Convention and the Optional Protocol ratified by the Spanish State and to the content of the judgment issued by this Court no. 1263/2018, of July 17, 2018 (appeal 1002/2017).
Regarding the two questions of jurisprudential interest raised, it makes the following considerations:
1st) The opinions of the Committee on the Rights of Persons with Disabilities (CRPD) must be complied with by the Spanish State, and therefore the doctrine established by the Chamber in the judgment of July 17, 2018 (appeal 1002/2017) must be confirmed, and it must be declared that the claim for patrimonial liability of the State is an adequate channel for this.
It begins by affirming that the Convention, ratified by Spain, is a norm of the internal legal system (Article 96.1 of the Spanish Constitution) and has interpretive value regarding fundamental rights (Article 10.2 of the Spanish Constitution), in this case referring to persons with disabilities. And this character of a binding and mandatory legal norm of the Convention is reaffirmed in a conclusive manner in Article 29 of Law 25/2014, of November 27, on Treaties and other International Agreements, which obliges all public authorities and State bodies “to respect the obligations of International Treaties in force to which Spain is a party and to ensure the proper fulfillment of said treaties”. The Vienna Convention establishes that “every treaty in force binds the parties and must be performed in good faith”.
Therefore, the appeal continues to be presented, the Committee’s opinions must be complied with, and in order to prevent the proven non-compliance by the Spanish State from being perpetuated, it is necessary to determine the appropriate channel for its compliance, given that none has been legally established. In this regard, it maintains that the appropriate channel for this purpose must be the most effective for achieving the effectiveness of fundamental rights and their reparation when they have been violated, especially in a case involving particularly vulnerable individuals, such as persons with disabilities, who are in a position of inequality and are therefore entitled to an administrative response appropriate to their needs.
Based on all of the above, it considers that the Committee’s opinion constitutes a valid prerequisite for filing a claim for patrimonial liability of the State.
2a) The principle of res judicata is not violated, nor are final judicial resolutions reviewed in cases where a claim for patrimonial liability is filed. It sets forth the following reasons for this:
a) For res judicata to apply, in accordance with Article 222 of the Civil Procedure Law (LEC), there must be a complete identity of the object and claims with respect to the proceedings in which the final judgment was issued. In this case, there is no such identity since the object is entirely different and so are the claims, as the previous judicial proceedings challenged administrative acts regarding Rubén’s schooling in a special education center, and now a claim for patrimonial liability is being brought, which materializes in a request for compensation for damages and losses caused.
b) It is decisive that the basis for this claim for patrimonial liability is a new and different fact, namely that what is being requested is compliance with the Committee’s opinion on said Convention, and the patrimonial claim is based on the content and execution of the reparation measures established by said opinion.
c) The violation of fundamental rights identified by the Committee’s opinion is not based solely on assessments of the judgment or judicial resolutions, but on the finding that the Spanish State, in the various actions taken regarding their son, did not provide an adequate response nor adopt effective measures by the bodies that handled the appellants’ claims, considering the set of facts and actions and stating: “The Committee concludes that the State party has failed to fulfill its obligations under articles 7, 15, 17, 23 and 24, read alone and in conjunction with article 4 of the Convention”.
In other words, everything is framed within the breach of that general obligation to adopt all effective measures to make rights effective.
FIFTH. – The appeal brief filed by the Public Prosecutor’s Office requests the acceptance of the cassation appeal, annulling the sentence issued by the National High Court Chamber, developing a dual line of argument for this purpose:
1a) Reject the formal argument used in the appealed judgment, which consists of highlighting the res judicata achieved by the resolutions issued by bodies of the contentious-administrative jurisdiction.
It argues for this that the objective of the lawsuit filed by the plaintiffs was not to revoke the judicial resolutions that preceded the Committee’s opinion, because, to do so and in their case, they should have used another extraordinary procedural instrument, provided for in our Legal system, to nullify judicial resolutions that have become final and, therefore, have achieved the status of res judicata.
The action exercised is for patrimonial liability due to the abnormal functioning of the Administration of Justice and its primary objective is to obtain compensation for the damages and losses alleged due to the violation of a series of rights included in the Convention, which has been appreciated by the Committee’s opinion.
2a) Question the material argument of the ruling, which consists of denying any binding value for Spain to the Committee’s opinions on the rights of persons with disabilities, emphasizing that these are mere recommendations, without any executive force for our country.
Firstly, it affirms the interpretative value that the Constitutional Court has recognized to the United Nations Conventions (STC 23/2020, of February 13, FJ 6) and, in particular, to the UN Convention on the rights of persons with disabilities [SSTC 3/2018, de 22 de enero (FJ 5); 51/2021, de 15 de marzo (FJ 3 a); 172/2021, de 7 de octubre, FJ 3 B); y 21/2023, de 27 de marzo, FJ 2].
Furthermore, citing our ruling no. 1263/2018, of July 17 (FJ Eighth 2nd), it maintains that the decisions of the Committees can be the enabling prerequisite for filing a claim for patrimonial liability of the State due to abnormal functioning of the Administration of Justice, as the ultimate channel for obtaining reparation, as well as the eventual binding force of those Committee opinions in which a violation of human rights enshrined in the Convention is found, when they correspond to the fundamental rights and public liberties expressed in the Spanish Constitution of 1978.
In accordance with the content of Article 4 of the CRPD, it holds that the conclusions arising from the opinions of this Committee can indeed have binding effects for Spain, as they derive from the interpretation and application of a Convention signed and ratified by our country, with its text incorporated into the domestic legal system, in accordance with Article 96 of the Spanish Constitution. Furthermore, as it is a Convention on human rights, the clause of Article 10.2 of the Spanish Constitution applies with full force.
In direct reference to the opinion invoked in the claim for damages filed by the parents of the disabled minor, which was dismissed by the initial ruling, it highlights how that opinion, issued with all procedural guarantees and with the participation of the Spanish State, determined the breach of various obligations contained in several provisions of the Convention (Articles 7, 15, 17, 23, and 24, in relation to the general framework of obligations under Article 4) and underscored the violation of the rights of the person with a disability referred to therein (rights not to be subjected to torture and other cruel, inhuman, or degrading treatment or punishment; to physical and mental integrity on an equal basis with others; not to be discriminated against in matters relating to family; and to education through an inclusive system at all levels).
And, finally, it points out that Spain has not demonstrated the adoption of remedial measures for the right not to suffer the discrimination identified by the Committee, which implies the continuation of the violation of rights recognized in the Convention.
It concludes by stating that it is about seeing whether the non-adoption of those can constitute a violation of the fundamental rights invoked in the lawsuit and whether the judgment here appealed, as an act of a Spanish public authority, by dismissing the contentious-administrative appeal and maintaining the legality of the administrative activity that was questioned, has violated such fundamental rights. It then provides a detailed and justified analysis of the correspondence between the violations of the Convention and the fundamental rights recognized in Articles 14, 15, 23, and 27 of the Spanish Constitution.
SIXTH.- The opposition to both appeals presented by the State Administration is contrary to their estimation, deploying the arguments that we summarize.
1st) The Committee’s opinion does not have the binding force claimed, as the Court has had occasion to rule in its judgment of June 13, 2023 (appeal 5269/2022), transcribing its fifth to eighth grounds of law, inclusive.
2nd) The Committee’s opinion implies, de facto, setting aside finalized proceedings with the force of res judicata since, even though it does not formally set aside the judgments issued by the judicial bodies of the contentious-administrative jurisdiction, nor the inadmissibility of the appeals for protection before the Constitutional Court and the European Court of Human Rights, nor the dismissals of the complaints filed by them with the Provincial Prosecutor’s Office of León, the truth is that, materially, it sets aside all these resolutions by reaching conclusions radically contrary to those they had reached, something that not even judgments issued in appeals for unconstitutionality can achieve unless it is to favorably review the penalties or sanctions imposed.
3rd) Patrimonial liability for the functioning of the Administration of Justice is not appropriate.
The claim is based on the incorrectness of certain judicial decisions, which constitutes the figure of judicial error, having had to resort to the appropriate channel for that case, such as its prior declaration under article 293 of the LOPJ, without this prior declaration of judicial error being able to be substituted by the opinion of the aforementioned Committee.
Dismissive judgments issued by the contentious-administrative jurisdiction cannot be considered to constitute abnormal functioning of the Administration of Justice, nor can they be considered to be incurred in judicial error.
Nor can it be understood that there is a case of abnormal functioning in the fact that the parents of the disabled minor were involved in criminal proceedings that were carried out with all guarantees and ended with an order of dismissal. Remember that the accused have the duty to bear judicial actions and the measures adopted therein, unless abnormal functioning is proven or it is declared that a judicial error has occurred [Sentencias del Tribunal Supremo de 20 de mayo de 2004, Rec. 2281/2000, y de 14 de febrero de 2012, Rec. 2076/2011], which has not happened here.
4) There has been no causal link whatsoever between the rulings issued in the criminal and administrative litigation proceedings and the existence of abnormal functioning of the Public Administration that could generate patrimonial liability of the State. As the appealed judgment makes clear: “the Committee’s opinion assesses the facts denounced by the appellants in a manner contrary to that established in the final judgment with the authority of res judicata and takes into consideration the evidence that the Spanish Courts themselves dismissed.”
5) Regarding the damages for which compensation is claimed, the approach is twofold:
a) All the damages allegedly caused, except for those arising from judicial actions, do not correspond to the State Administration. It expressly rejects that those claimed as arising from the decision to enroll in a special education center can be attributed to the State Administration, as that decision is the exclusive competence of the corresponding autonomous administration, in this case, the Administration of the Autonomous Community of Castilla y León.
b) Challenges the quantification of damages for not being proven.
SEVENTH. – The first of the objective casational interest questions must be answered based on the full agreement of the parties that with the invoked international and domestic law there is no specific and autonomous procedural channel to demand compliance with the opinions of the Committee on the Rights of Persons with Disabilities.
This places us in the factual scenario analyzed in our ruling of July 17, 2018 (appeal 1002/2017) and, therefore, as then, we must declare:
1. That the absence of a specific and autonomous channel to enforce in the Spanish legal system the recommendations of a Committee on the Rights of Persons with Disabilities opinion due to violation of fundamental rights recognized in the Convention by the Spanish State, prevents the autonomous enforcement of those opinions.
2. That, notwithstanding this assertion, given that the existence of an adequate and effective channel to assert the recognition of the violation of fundamental rights before the Spanish judicial bodies directly concerns the respect and observance by the Spanish public authorities of fundamental rights, it is possible to admit that such an opinion may be the enabling prerequisite for filing a claim for patrimonial liability of the State due to the abnormal functioning of the Administration of Justice, as a final channel to obtain reparation, irrespective of the decision that is appropriate in each case and even of the possible appropriateness of other channels in the factual scenarios that may arise.
It is advisable to accompany the above with some considerations.
1a) That, although neither the CRPD nor its Optional Protocol regulate the executive nature of the Committee’s opinions, there can be no doubt that they will be binding/obligatory for the State party to which the Convention itself and its Protocol attribute them in Article 4.1 thereof, which provides that “States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms of persons with disabilities without any discrimination of any kind on the basis of disability. To this end, States Parties undertake to: a) Adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention.” This is reinforced by the express recognition of the Committee’s competence under Article 1 of the Optional Protocol itself, voluntarily assumed by Spain.
2a) That the opinion emanates from a body created within the framework of international regulations which, by express provision of Article 96 of the Spanish Constitution, forms part of our internal legal system after its ratification and publication in the Official State Gazette, and which, as Article 10.2 of our Magna Carta so requires, the norms relating to fundamental rights shall be interpreted in accordance with the Universal Declaration of Human Rights and the international treaties and agreements on the same matters ratified by Spain.
This is particularly relevant because (i) we are faced with an allegation or complaint of violation of fundamental rights based on a declaration from an international body recognized by Spain, which has stated that the Spanish State has infringed specific rights of the appellant that were protected by the Convention, ordering reparation or compensation measures in favor of the complainants and action measures by Spain; (ii) the international body’s declaration was made within a specifically regulated procedure, with guarantees and full participation from Spain; (iii) Article 9.3 of the Spanish Constitution affirms that the Constitution guarantees, among others, the principle of legality and the hierarchy of norms, such that international obligations relating to the execution of decisions from international control bodies whose competence Spain has accepted are part of our internal legal system, once received under the terms of Article 96 of the Fundamental Law, and enjoy the hierarchy conferred by both this article – supralegal rank – and Article 95 – infraconstitutional rank; (iv) therefore, the Committee’s opinion cannot be deprived of effect by contrasting it with the binding effect of the Convention, as this could, if not render it ineffective, at least limit its real and effective value and scope. Their effects may be considered different, but not that one exists and the other does not.
3a) In accordance with the doctrine established by the Constitutional Court in its Judgments 245/1991 of December 16 and 91/2000 of March 30, we consider that there is no obstacle to the violation of various rights recognized by the CRPD and declared by the Committee’s opinion, being a determining element to prove the possible violation of the applicant’s corresponding fundamental rights, as the content of the former also forms part of the latter, constituting the minimum and basic standard of fundamental rights for every person in the Spanish legal system, as a result of the fact that the international treaties and agreements that support this Committee, in addition to being domestic law with the hierarchy recognized by the Constitution, are also interpretative instruments of the fundamental rights of the Spanish Constitution according to its article 10.2.
4a) In this task of interpreting and integrating fundamental rights according to international regulations and the opinion of the CRPD Committee, it should be highlighted that the violation of the Convention’s rights declared by the Committee refers to the non-adoption by the organs of the Spanish State, in their various spheres, orders, and instances, of the necessary and effective measures to avoid discrimination against the applicants, taking into consideration that according to article 2 of the CRPD,
“‘discrimination on the basis of disability’ shall mean any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis, of all
human rights and fundamental freedoms in the political, economic, social, cultural, civil or other fields. It includes all forms of discrimination, including the denial of reasonable accommodation”, further specifying that “‘reasonable accommodation’ shall mean necessary and appropriate modifications and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms.
5a) That it is an established fact that Spain, despite the content of the opinion, has not demonstrated the adoption of remedial measures for the right not to suffer discrimination, which was declared violated as a consequence of the set of actions – active and omissive – carried out by the Spanish State.
It is also important to point out that the doctrine we apply, declared by the Chamber in its judgment 1263/2018, of July 17 (appeal 1002/2017), cannot be considered abandoned by the subsequent judgment 786/2023, of June 13 (appeal 5269/2022), as the defense of the State Administration seems to imply in its written opposition to the appeal for cassation.
This last ruling states that the opinion concerned therein could not be considered, on its own, a sufficient basis for the patrimonial liability of the Administration, which was declared by the trial court as direct and automatic execution of the decision of the Committee involved (Committee against Torture). Therefore, after a general exposition on the value of the opinions of the United Nations Committees and carrying out the analysis of patrimonial liability, it states: “It is therefore appropriate to set aside the appealed judgment insofar as it has converted a case of patrimonial liability into a case of direct and automatic execution of a Committee decision declaring the violation of a fundamental right, without carrying out the corresponding examination of each of the specific requirements for which the patrimonial liability is annulled. Therefore, it is making an inadequate interpretation of our 2018 ruling, by having linked the CAT’s decision, which declares the violation of a fundamental right, to the mere occurrence of patrimonial liability.” Subsequently, this ruling answers the question of jurisprudential interest by declaring that the Opinion “cannot be considered to bind the Administration or the Spanish jurisdictional bodies for the purpose of constituting sufficient and valid proof of the occurrence of the Administration’s patrimonial liability, as for patrimonial liability to arise, the specific requirements of this institution, upon whose concurrence such patrimonial liability is attached, must be examined in any case.”
To complete what has been said, it must be added that the ruling itself analyzes the specific claim for patrimonial liability, stating: “There is no doubt about the injuries suffered by the appellant, such as the nasal fracture. However, doubts arise when it comes to determining whether this notorious damage, which is damage that is ‘effective, economically assessable, and individualized in relation to a person or group of persons’ (Article 32.2 of Law 40/2015), is attributable to the functioning of public services, given that there must be a causal relationship between the damage produced and the actions, in this case, of the police officers who proceeded with the arrest. Taking into account that the appellant never alleged that the injuries occurred at the police station, but at the moment of the arrest.”
Indeed, according to the criminal judicial rulings, which are part of the administrative file, it is evident that according to the respondent’s account, the injuries were caused during her detention (“slaps”, a blow to the head upon entering the police vehicle, and sudden braking that caused her head to hit the partition of the vehicle). However, in the frames extracted from the recording of the security cameras installed in the police facilities where the detainee was taken, “not the slightest hint of the injuries” was appreciated, which according to the appellant’s account had already occurred, as stated in the Order of July 10, 2014, of the Provincial Court of Córdoba, when confirming on appeal the order of January 31, 2014, of the Court of Instruction No. 1 of Córdoba, preliminary proceedings 337/2013, which had ordered the “provisional dismissal of the proceedings, regarding the reported crime”, and which stated that according to the witnesses the detainee “had a violent and aggressive attitude at all times, even threatening the officers with reporting them”.
All of the above, combined with the statement of the doctor who later attended to the complainant there, indicating that she had nasal inflammation and swelling in the area; and the statements of the witnesses who, in addition to her violent conduct, heard the detainee say that she knew how to obtain a medical report for injuries. And, finally, to the position of the Public Prosecutor’s Office, which requested the dismissal and stated that it “appreciates indications of the possible existence of a false accusation”.
Thus, in the case examined, the respondent, now appellant, alleges damage that is certainly real, effective, and economically quantifiable. However, this Court cannot accept as true, based on the administrative file and the facts inferred from the aforementioned final judicial decisions and the final decision of the Constitutional Court that dismissed the appeal, that the injury claimed by the respondent is a consequence of the normal or abnormal functioning — in this case, it would be abnormal functioning — of public services, in a relationship that, let us not forget, must be immediate, and whether exclusive or not, must be relevant to the cause-and-effect relationship, without the intervention of external elements that could alter the causal link.
And, after that, it concluded: “We do not find the concurrence of the requirements for patrimonial liability in the case we are examining, due to the absence of the second stated requirement, which demands that the patrimonial injury suffered be a direct consequence of the sphere of action of police officers (‘provided that the injury is a consequence of the normal or abnormal functioning of public services’ as imposed by Article 32.1 of Law 40/2015).”.
Finally, the assertion that this was the scope of the ruling is made even clearer, if possible, by the content of the concurring dissenting opinion filed by two Magistrates: «My disagreement refers to the conclusion reached by the ruling regarding the appellant’s claim for compensation and the premise on which its reasoning is based.
I agree, however, that the resolutions of the Committees of the United Nations Organization, created under the International Covenant on Civil and Political Rights, do not in themselves have a binding character. The ruling explains well that in n.o 1263/2018, of July 17 (cassation n.o 1002/2017), we adhered to the circumstances of the case and, precisely, in consideration of them, we agreed with the opinion of the CEDAW Committee.
Well, the same approach observed then is what I believe should have been followed now, but the relevant facts have not been attended to in the way I think they should have been.
Therefore, by denying all effect to the opinion, the appealed ruling infringes the legal system and our jurisprudence.
EIGHTHThe second of the questions of jurisprudential interest must be answered in the negative, that is, affirming that the principle of res judicata is not being violated nor are final judicial decisions being reviewed in cases where a claim for patrimonial liability is made based on the conclusions and obligations imposed on the Spanish State by the opinion of the Committee on the Rights of Persons with Disabilities.
The claim for liability is based on the violation of the fundamental rights of the claimants (now appellants) due to a series of actions that revolve around the schooling of a disabled minor in a special education center, the mistreatment of the disabled minor prior to that, and the criminal proceedings initiated against the parents for not carrying out that schooling, considering inclusive education in a mainstream school with the necessary support measures to be more beneficial.
Judicial decisions regarding the non-violation of fundamental rights by the decision to enroll in a special education center, which was adopted, are not subject to review through the claim for patrimonial liability, nor could they be through this procedural and legal route initiated by the parents, as there is a specific channel for it in our legal system, the review appeal, and it is evident that we are not in that situation.
However, this does not prevent the administrative actions prior to that judicial decision from constituting improper treatment of the disabled minor, as the Valladolid Chamber itself pointed out when it noted that there may have been abnormal functioning represented or characterized by the existence of a “climate of tension in the educational center, where, as was proven, acts of physical and psychological abuse were committed against the disabled minor, and enveloped in it, the minor developed a certainly serious educational and behavioral regression, at which point the educational administration detected that the minor presented a considerable delay in his educational and cognitive development, along with behavioral problems of special relevance, including psychotic episodes with disruptive behavior, at which point the decision was made to exclude him from the inclusive education he had followed adequately for years, with the necessary adoption of support measures to carry out the precise reasonable adjustments”. However, the Chamber denied that the decision to assign him an education in a special center, in such a characterized situation, violated his fundamental rights. In short, what the Valladolid Chamber came to recognize is that it was the only possible solution to face the situation generated for the minor.
These facts were certainly analyzed by the territorial Chamber, but not to the extent of excluding them from the assessment of possible abnormal functioning.
And if that can be affirmed about the schooling decision and the previous actions that determined it, it will be even more possible with respect to subsequent events, such as those that led to the action of the Provincial Prosecutor’s Office of León and the criminal proceedings against the minor’s parents for abandonment of family, from which they were finally acquitted, which were never analyzed in the judgments issued by the judicial bodies of the contentious-administrative jurisdiction.
This set of facts are those valued by the Committee’s decision and, therefore, the violation of fundamental rights that its opinion appreciates is not based solely on assessments of the judgment or judicial resolutions, as the lower court states, but on the finding that the Spanish State, in the proceedings concerning the disabled minor, did not provide an adequate response nor adopt effective measures by the bodies that handled all the claims of the appellants. In other words, everything is framed within the breach of the general obligation to adopt all effective measures to make effective the rights imposed by Article 4 of the CRPD, as the appellants highlight.
In short, it is not possible to affirm the existence of res judicata because, according to Article 222 of the LEC, there must be a full identity of the object and claims with respect to the proceedings in which the final judgment was issued. In this case, as stated, there is no such identity since the object is completely different and the claims are also different.
NINTHNinth.- The consequence of all the foregoing and the application of the established doctrine determine the necessary acceptance of the cassation appeal and the revocation of the lower court’s ruling.
Therefore, in application of Article 93.1 of the LJCA, this Court should proceed to analyze the issues raised in the contentious-administrative appeal. However, the lack of assessment of the other prerequisites necessary for the appreciation of liability for the abnormal functioning of the administration of justice requires the return of the case files to the lower court for it to issue a ruling on the merits.
TENTH.- Regarding court costs, in accordance with Article 93.4 of Jurisdictional Law 29/1998, as amended by Organic Law 7/2015, of July 21, in the cassation appeal, each party shall pay the costs incurred by their instance and the common costs by half, and in the costs of the instance, no order is made given the nature and particularities of the matter and the scope of the ruling.
Ruling
For all the foregoing reasons, in the name of the King and by the authority conferred upon it by the Constitution, this Court has decided:
1. TO UPHOLD the appeals for cassation filed by the legal representatives of Rubén Calleja Loma, Lucía Loma Luis, and Alejandro Agustín Calleja Lucas, and by the Public Prosecutor’s Office, against the judgment issued on November 17, 2022, by the Third Section of the Administrative Litigation Chamber of the National High Court in special procedure for the protection of fundamental rights of the person 2/2002, thereby overturning and annulling that judicial resolution. The case files are to be returned to the court of origin for the purposes set forth in the ninth legal ground.
2. Regarding costs, the provisions of the final legal ground of this judgment shall apply.
Notify the parties of this resolution and include it in the legislative collection.
This is agreed and signed.
Supreme Court. Contentious-Administrative Chamber
Dissenting vote
Judgment date: 11/29/2023.
Procedure type: C. APPEAL Number: 85/2023.
Magistrate formulating the dissenting opinion: His Excellency Mr. Luis María Díez-Picazo Giménez.
Dissenting opinion formulated, under article 260 of the organic law of the judiciary, by the magistrate of the third chamber, fourth section, His Excellency Mr. Luis María Díez-Picazo Giménez, in sentence No. 1597/2023, delivered on November 29, 2023, in cassation appeal no. 85/2023.
I respectfully disagree with the Chamber’s opinion in this matter. My disagreement with the reasoning and the ruling of this sentence is due to two reasons.
I
The first reason is that I do not believe that an opinion of the Committee on the Rights of Persons with Disabilities – which declares that Spain has failed to comply with the obligations imposed on it by the relevant Convention – can be, as this ruling states, an “enabling prerequisite” for the State’s patrimonial liability due to the abnormal functioning of the Administration of Justice.
It is worth recalling, from the outset, that this Court has ruled on two occasions regarding the significance in Spanish law of acts by United Nations committees. These are our rulings of July 17, 2018 (rec. no. 1002/2017) and June 13, 2023 (rec. no. 5269/2022). To be honest, these two precedents do not reveal a clear or unambiguous criterion.
That said, the central idea of this ruling is that, given “the absence of a specific and autonomous channel to make effective the recommendations of the Committee within the Spanish legal system,” an action for compensation against the State can be brought “as a last resort to obtain redress” for rights that cannot be enforced otherwise. In my view, this idea cannot be accepted, because the acts of international organizations – such as the Committee on the Rights of Persons with Disabilities – do not automatically have binding value or force in Spanish law. To argue otherwise, this ruling reasons based on the monism that Article 96 of the Spanish Constitution adopts regarding international treaties. However, the fact that international treaties, validly concluded and once published, become part of the domestic legal system and are even protected from modification by subsequent laws does not necessarily imply that this is also applicable to the acts of international organizations. The fact that the international treaty that creates an international organization, defines its powers, and regulates its procedures is part of the domestic legal system in Spain does not, either logically or in practice, mean that the acts of the bodies of that international organization also automatically acquire the status of domestic law. To put it in the usual terminology in Europe, that something is true with respect to primary or original law does not necessarily mean that it is also true with respect to derived law.
Experience shows this: if some types of acts of derived law of the European Union – but not others – are directly effective in Spanish law, it is fundamentally because Article 288 of the Treaty on the Functioning of the European Union so provides; and not because said treaty is part of the internal legal system in compliance with the provisions of Article 96 of the Spanish Constitution. So much so that the direct effectiveness of regulations or decisions operates in exactly the same way in the not few Member States of the European Union that do not consider international treaties as part of their internal law. Even more illustrative is the case of the European Convention on Human Rights: the contracting parties certainly undertake to comply with the judgments of the Strasbourg Court; but such judgments only have enforceability to the extent that each national legal system grants it, and in Spain, as is well known, it took a long time and effort to give them a rather limited form of effectiveness, such as that contemplated in Article 5 bis of the Organic Law of the Judiciary. Given this situation, the question that should be asked is why acts of the committees of the United Nations or other international organizations with an infinitely lesser integration vocation than the European Union or the European Convention on Human Rights should enjoy more favorable and generous treatment in the Spanish internal legal system. Article 96 of the Spanish Constitution cannot be the answer.
To all that has been said, it must be added that neither the Convention on the Rights of Persons with Disabilities nor its Optional Protocol governing the Committee examined here provide that the acts of said body, which are significantly called “recommendations,” must have binding value or force in the domestic law of the signatory States. Pursuant to its art. 4, the parties undertake to “adopt all appropriate legislative, administrative and other measures that are necessary to implement the rights recognized in the present Convention”; which means that the international treaty itself expressly recognizes the need for internal rules of incorporation and adaptation. To express it more precisely, it establishes an obligation of purpose, consisting of ensuring the effectiveness of the rights proclaimed by the Convention; and not an obligation of means, such as the automatic effectiveness in domestic law of the acts of the corresponding control body.
Thus, given that the acts of the Committee on the Rights of Persons with Disabilities lack binding value or force in the Spanish legal system, it is necessary to conclude that the declarations – of fact or of law – made by it on specific situations cannot alter what has been decided by final judgments and other resolutions of the Spanish jurisdictional bodies. To argue otherwise would amount, as the State Attorney rightly argues, to evading the meaning and binding nature of final judicial decisions. Hence, it cannot be understood that an opinion of the Committee on the Rights of Persons with Disabilities can operate as an “enabling prerequisite” for an action for compensation against the State.
It is, of course, a different matter whether the State’s actions or omissions in contravention of acts of an international organization may give rise to its international responsibility. But this is something that national judges and courts cannot, on their own, remedy; and this simply because their duty is to resolve disputes in accordance with the established system of sources, of which the acts of international organizations – in the absence of a rule so providing – are not part.
II
There is a second, even more important reason for my disagreement. Even admitting for purely argumentative purposes that the opinion of the Committee on the Rights of Persons with Disabilities, which is the subject of this analysis, had binding value and force in Spanish law and could therefore serve as a basis for an action for compensation against the State, this could not be exercised as a claim for State liability due to the abnormal functioning of the Administration of Justice.
It is clear and long-standing jurisprudence that the actions or omissions of judicial bodies in the exercise of jurisdictional power – that is, when judging or enforcing what has been judged – can never lead to the abnormal functioning of the Administration of Justice, but only to judicial error. This means that with respect to what has been decided by a judicial resolution (judgment, order, ruling), only judicial error is possible. And judicial error must have been previously declared and through one of the means provided for in art. 293 of the Organic Law of the Judiciary. The prior declaration of judicial error is thus a condition for initiating an action for compensation against the State; something that, on the other hand, does not occur with the abnormal functioning of the Administration of Justice, a generic category encompassing everything that is not strictly judging or enforcing what has been judged, as well as what is attributable to the auxiliaries and collaborators of the court or tribunal. See in this regard, among many others, the judgments of this Chamber of April 18, 2000 (rec. no. 1311/1996), December 15, 2009 (rec. no. 289/2008), June 15, 2015 (rec. no. 2309/2013), September 11, 2015 (rec. no. 3720/2013), and June 2, 2016 (rec. no. 148/2015).
It is important to emphasize that the legislator’s choice of two different modalities of the State’s patrimonial liability as judged by the court, each with its own procedure and substantive requirements, far from being capricious, reflects a distinction that is already present in Article 121 of the Constitution. Judicial error must be seen as exceptional, given the enormous volume of judicial decisions issued daily in any modern legal system: the viability of the system would not allow any mistake to be classified as judicial error. This not only explains the requirement for a prior declaration of judicial error, but also the constant jurisprudential criterion that judicial error is only that which is very serious or inexcusable; not any other mistake, whether of fact or of law. This strict delimitation of judicial error also serves a general interest objective, which is to prevent it from becoming a surreptitious mechanism for reconsidering any judicial decisions or reopening concluded proceedings.
Well, in the present case, it is evident that the way to exercise the action for compensation against the State cannot be through the abnormal functioning of the Administration of Justice: if the damage is attributed to the judicial decisions regarding the schooling of the disabled minor and the initiatives of his parents, it is clear that only patrimonial responsibility for judicial error could be claimed; and if the damage is attributed, as the sentence does rather ambiguously, to the State as a whole because “in the proceedings concerning the disabled minor, an adequate response was not given nor effective measures were adopted”, then we are outside both judicial error and the abnormal functioning of the Administration of Justice. This would be, assuming the requirements were met, patrimonial responsibility of the Administration, and the basis for the action for compensation and the procedural route to exercise it should have been different. And even so, it would be necessary to recall that, in this case, the courts considered that the Administration’s action was in accordance with the law; which would not be irrelevant when assessing unlawfulness as an element of the Administration’s patrimonial responsibility.
Even within this line of reasoning, it should be noted that the inadequacy of the grounds and the legal avenue used by the appellants to claim compensation from the State was not alleged in the initial proceedings. This is something that the State Attorney only raised at the cassation stage, and therefore it is a new issue. However, this is only relevant for the purpose of accepting or rejecting the appeal for cassation, not for the purpose of resolving the dispute at the initial stage: the requested compensation cannot be justified as the State’s patrimonial liability for the abnormal functioning of the Administration of Justice, simply because neither the substantive requirements are met nor the appropriate procedure has been followed.
Madrid, November 29, 2023.